Abdulrasheed Ibrahim, LL.M, Notary Public
The main contention in the case under review was that since Hon. Justice M.B. Idris had been elevated to the Court of Appeal , he lacked the jurisdiction to continue with the criminal matter he started as a judge of the Federal High Court but could not conclude before he was elevated, despite the clear wording of the Section 396 (7) of the ACJA.The Supreme Court upheld the argument of Appellant’s counsel against the Secton 396 (7) of ACJA replying on some Sections of the 1999 Constitution as amended including Section 250 (2) that talks about the appointment of a judge of the Federal High Court; Section 253 that states that a Federal High Court shall be duly constituted by a judge of that court as well as Section 290 (1) that talks about when a person appointed as a judge of the Federal High Court shall begin to perform the function of that office.The Supreme Court per Eko JSC also states further that :
“The AJCA (as written in the judgment instead of ACJA) 2015 in its 495 Sections , does not define ‘law’, or ‘any other law’, or the ‘any other law to the contrary’ that its provision in Section 396 (7) purports to override ,it appears ‘any other law to the contrary’ includes any written law or statute ,including the 1999 Constitution , as amended that contradicts Section 396 (7) of ACJA! The National Assembly, in view of the supremacy provision of the Constitution, in Section 1 thereof, could not have intended that audacious insubordination to the Constitution, or state of absurd fool hardiness of legislating into Section 396 (7) of the ACJA, 2015: that the provision would also override any provision of the Constitution to the contrary of Section 396 (7) ACJA.”
With utmost respect to our apex court ,the bracketed words in the first line above is mine to stress the fact that nobody is immuned from making error just as we have seen in the fiat/permission given to Hon. Justice M.B. Idris by the President of the Court of Appeal. While still maintaining the position that I have personally not seen how the said Section 396 (ACJA) 2015 goes in conflict or contrary Section 1 (3); Section 250 (2); Section 253 and Section 290 (1) of the Constitution of the Federal Republic of Nigeria as amended except we want to accept the fact that we are not interested in the developing our law in this country or that we are comfortable with the way cases go on endlessly in our courts. Is there anything that ought to have been done by the National Assembly that has been left undone? If that is so, then our National Assembly is not living up to its responsibility. Is there anything irrational with the law allowing an elevated judge to go back to the court from where he was elevated for the purpose of only concluding within reasonable time the matter he could not complete while he was there? Is the present position of law of reassigning a matter that has lasted for years before an elevated judge to another judge to start the denovo will continue to be a good law? Which of the two options will honestly advance the speedy dispensation of justice? Will the present case under review advance the quick dispensation of justice even when it was on record that one of the defendants had asserted that re-starting the criminal trial de vono would work untold hardship to all the defendants including the prosecution? I have read some arguments that parties cannot confer jurisdiction by consent. Yes, I accept that settled principle of law but that is not the issue here rather my contention is: how do we get rid of the endless cases in our judicial system and move along with the modern and civilized world?
The Supreme Court accepted the Appellant’s arguments placing further reliance on the previous decision of the apex court in the cases of OGBUNYINYA & ORS Vs. OKUDO & ORS (1979) NSCC 77 and OUR LINE LTD Vs. SSC NIGERIA LTD & ORS (2009) 17 NWLR (Pt. 1170) 383 wherein the Supreme Court set aside the judgments of Hon. Justice Nnemeka –Agu and Hon. Justice Anthony Iguh respectively delivered in the High Court of Anambra State after their elevation to the appellate court. I am of the view that the two learned jurists did not exercise their power or discretions based on any enabling law as done Hon. Justice M. B. Idris, rather they used their progressive minds and initiative to do what they did, although their actions were later declared null and void by the Supreme Court and the cases remitted back to the trial courts for re-trial. The implication of that was that regardless of the numbers of years the parties must have spent in litigating the cases, they were sent back to the trial court to begin the cases afresh. Now ,let us ask ourselves what would have been the situation if the Supreme Court had held otherwise and said that regardless of the elevation of the two jurists their judgments are proper and on merit, would that debar any of the parties not satisfied with the judgments on the merit from file appeals against the judgments on merit? Of course no, an aggrieved party can appeal and at the Court of Appeal, the elevated judges that delivered the judgments merit will not sit on the panel that will hear the appeal. But in these two cases under reference, the Supreme Court by setting aside those judgments and remitted them back for re-trial gave the unsuccessful party the opportunity to have a second bite of the cherry for another number of years. To what extent, will this kind of court order promote speedy dispensation of justice?
The Supreme Court as an institution has on several occasions lamented about the unnecessary delay in the dispensation of justice and blaming lawyers for filing frivolous application or preliminary objections that are often argued up to the apex court. For instance in the case of ARIORI Vs. ELEMO (1983) 1 SC at pages 74-75, our great late Jurist, Eso, JSC lamented that a case litigated for 20 years up to the apex court had to be unfortunately sent back to the High Court for re-trial. In OSHOBOJA Vs. AMIDA (2009) 18 NWLR (Pt. 1172) at Page. 207 Paras A-B, Ogbuagu, JSC lambasted the Appellants that had gluttony for unwarranted and prolonged litigation by litigating the case for 54 years which the learned jurist said also was very unfortunate. In the case of SOCIETE BIC S.A. & 2 Ors Vs. CHARZIN INDUSTRIES LTD. (2014) 4 CLRN Pg. 26 Lines 29-40 , Rhode Vivour , JSC showed his displeasure on a case filed in 1995 and took 19 years to resolve only the simple issue of jurisdiction courtesy of an interlocutory appeal. The matter was remitted back to the High Court for trial to commence in the main suit .This was similar to what happened in the case of Amadi Vs. NNPC (2000) 10 NWLR (Pt. 675) 76 wherein Justice Uwais , a former CJN observed that the matter that commenced before the trial court in 2007 took 13 years for the issue of jurisdiction courtesy of an interlocutory appeal argued up to the Supreme Court to be determined. The matter was sent back to the trial court to be determined on merit.The learned jurist in the matter advised counsel to help reducing delay by desisting from filing unnecessary preliminary objections. He was also of the view that such interlocutory application should have been taken along with the substantive claim so that an aggrieved party could at end combined both appeals on jurisdiction and the judgment on merit together.
With this latest Supreme Court’s case under review, is the apex court taking us to the Promised Land as far as speedy dispensation of justice in our judicial system is concerned? The Section 396 (7) of ACJA 2015 that should have been revolutionary in this regard has been castrated and given a fatal blow by the same apex court that has over the years lamented the delay in the dispensation of justice. In the words of Augie, JSC in her contribution to the judgment under review:
“…I stand squarely and solidly with the position taken by this court in Ogbunyayi Vs Okudo (supra) and Our Line Ltd Vs. SCC (Nig) Ltd. (supra) .Section 396 (7) of AJCA has no place in our statute books, and the law remains that a judge, who has been elevated to the Court of Appeal, cannot go back to the High Court, put on a second cap, and continue sitting as a High Court Judge.”
One of the remarks of Lord Denning that I always admire was where he said “No matter what the law says I will do justice”. As a student of law and jurisprudence, I do not see anything wrong allowing an elevated judge to conclude the part heard case in which both parties have concluded given their evidence. In that situation it will be proper allowing the trial judge to deliver the judgment even if he has been elevated to the appellate court because by the present state of law, reassigning such matter to another judge to start afresh may not serve the interest of speedy dispensation of justice.I strongly believe that Supreme Court missed the opportunity in the case under review to develop our law in this area of law. The late Chief Richard Akinjide (SAN) once lamented in the Guardian Newspaper of 11th November 2008 that “Our laws are archaic”. Hon. Justice Salihu Modibbo Alfa Belgore, a former CJN in a paper titled: “The Courts’ Procedures and Justice, Corruption and Politics” delivered at the annual conference of the Nigerian Bar Association (NBA), Ijebu Ode Branch and published in the Guardian Newspaper of 21st August 2007, the retired learned jurist then said :
“Our Corpus Juris , applicable mainly in superior courts of records, is based almost entirely on English Common Law from 1902 through to 1914 and finally to our independence and up to the present , we have done nothing but mimickery of the English Common Law. The English Law have changed, adopted and reformed so much in the last 50 years , but we tenaciously cling to the same system. I am not here condemning the Common Law, far from it. What I propose in this short discourse is that as the English change due to circumstances they face, we have faced more circumstances that ought to compel our rethink…From the great Judicature Acts of the last quarter of 19th century through to law reforms of 1925, 1926 and up to the entry of United Kingdom to European Union, the English law and procedure have undergone one metamorphosis after another to the extent that that they are greatly at variance with our system.”
But what do we still have here in our judicial system? Our Supreme Court is kicked against a novel and revolutionary provision such as the Section 396 (7) of ACJA 2015. Can Chief Mike Ozekhome (SAN)’s school of thought call the above Belogore and Akinjide’s observations, sentiments, fiction and propaganda? In her contribution to the judgment under review, Kekere-Ekun, JSC noted that:
“It is not in dispute that M.B. Idris , JCA, upon the fiat of the Acting PCA, sat at the Federal High Court , Lagos and concluded hearing in suit no. FHC/ABJ/CR/2007 , which was part heard before him, and delivered judgment therein on 31/7/2018, after he had been elevated to the Court of Appeal and sworn in as a Justice of that court on 22nd June , 2018. In what capacity did His Lordship conclude proceedings and deliver judgement? Was he exercising jurisdiction as a judge of Federal High Court or as a Justice of the Court of Appeal? Did the Hon. PCA have the the requisite authority to direct a Justice of Court of Appeal to sit at the Federal High Court to conclude a part heard matter? These are all questions that agitate the mind in this case.”
With the greatest respect,these are very good questions that I will attempt to answer here, but before doing that let us the add the questions posed by Chief Adegboyegan Awomolo (SAN) when the learned silk asked in his article titled: “Is Section 396 (7) of ACJA Constitutional?” :
“…It is clearly a contradiction of the judicial oath for the Honourable Justices of the Court of Appeal to descend to the lower court to hear uncompleted cases.It is invalid, null and void….On a lighter note, how would the justice sign the judgment? If he signs as ‘a judge of the Federal High Court,’ he lies; and if he signs as a justice of the Court of Appeal, it is unlawful. How then does he sign?”